Tute 3doc - WEEK 7

By Pedro Stephens,2014-10-25 19:19
14 views 0
Tute 3doc - WEEK 7

    Melbourne Law Students’ Society Student Tutorial


     Premier Sponsor:

     Premier Sponsor:

    Supporting Sponsors:

     Supporting Sponsors:


    These tutorials are designed to assist students in their learning. The tutorials and tutorial notes are not a substitute for the course material, nor should they be relied on as representative of the subject matter of the course. Neither the Law Students Society nor the student tutor of these tutorials will take responsibility for any consequences flowing from the use of the material provided in tutorials or these tutorial notes.


Recognised Types of Easements

    ; Right of way

    ; Right to light an air (Cable)

    ; Right to enter land to erect fences

    ; Right to park cars (London)

    ; Right to enter land to use toilet (Deley)

    ; Categories of easements not closed but courts are wary of recognising new negative

    easements (Phipps)

Does the right have characteristics of Easement?

1. Dominant and Servient tenement (Re Ellenborough Park)

    ; You cannot have an easement in without a dominant (DT) and servient tenement (ST)

    would be a license

    ; Failure to specify dominant tenement in the grant not fatal to finding valid easement

    because can be construed from intention of parties (s 197 PLA; Gas Pipeline)

    ; You can have a dominant tenement in incorporeal hereditaments (eg the DT can itself be an

    easement) (Gas Pipeline)

    ; Does not matter if dominant tenement is not adjacent to servient tenement as long as

    sufficiently close (Gas Pipeline; Todrick)

2. Easement must accommodate dominant tenement (RE Ellenborough Park)

    ; The easement must be connected to the ‘normal and reasonable enjoyment of the land of

    DT’ (Ellenborough Park)

    ; Question of fact dependent on nature of DT (Clos)

    ; That easement adds value to the land will be indicative but not determinative of

    accommodation (Ellenborough Park)

    ; Process: Compare the nature of DT and the nature of right granted over ST and compare

    whether right linked to normal enjoyment of DT (Ellenborough Park)

    ; An easement may accommodate a business conducted on DT but only ‘where the business

    is itself a necessary incident to the normal and reasonable enjoyment of the eland, having

    regard to nature of the land (Hill v Tupper; Clos)

    o Eg: In Clos Farming didn’t meet this requirement because business wasn’t linked

    to land ‘independent exercise’ a business that just happened to be on that land,

    not a business intrinsically linked/special appropriate to that land in some way.

    ; An easement granted merely for commercial convenience won’t satisfy (Clos Farming)

3. DT and ST must be owned by different people(Re Ellenborough)

    ; Note however tenant can acquire easement over land owned by landlord even if both

    blocks owned by landlord (Borman)

    ; However extinguished if tenements both owned and occupied by same person

    ; Note the existence of ‘quasi easements’ (all features of an easement but owned by same

    person) if owner subdivides may create an implied easement (Wheeldon v Burrows)

4. Right must be capable of forming the subject of the grant (Re Ellenborough)

    ; Involves consideration of

    ; 1. Whether rights purported to be given are expressed in too wide and vague a character.

    (Re Ellenborough)

    ; 2. Whether easement unreasonably interferes with rights of owner of servient tenement:

    substantially deprive the ST of proprietorship or amount to joint occupancy (Re

    Ellenborough) rdo Can’t deprive ST of right to exclude 3 parties

    o No deprivation in making your land a garden an allowing certain people on to it


    o If DT has more rights than ST probably deprives of possession (Clos)

    o An easement cannot confer exclusive possession or deprive owners of anything

    but engaging in recreation on land, especially where value of land agricultural


    ; 3. Whether right are mere rights of recreation possession no quality of utility Re


    o Note this largely restates criteria 2

    o A private garden is ‘a beneficial attribute of residence in a house’ (Ellenborough)

    Has the easment been validly created?

    Easements can be created either expressly, or impliedly and either by grant or by reservation.

    Express creation of easement

    ; Can be created by express grant (eg vendor subdivides land, sells purchaser block and

    conveys them an easement)

    ; Or by reservation (eg purchaser takes a tenement bur reserves an easement over servient


    ; Can be registered as legal under Torrens system (s 72(1) TLA): if so legal.

    ; Equitable easements also recognised under Torrens subject to being specifically

    enforceable if:

    ; 1. It is in writing

    o - if so probably specifically enforceable under 53(a) PLA and therefore

    recognized as an equitable easement according to principles Walsh v Lonsdale

    court will order specific performance of a contract even where strict legal

    requirements not met.

    ; 3. If there part performance of an oral Contract: PLA s 55(d): nothing shall…affect the

    operation of the law in relation to part performance.

    Implied grant of an easement

1. Continuous and apparent easements (Wheeldon v Burrows)

    a. Grantee takes all ‘continuous and apparent easements’ which are necessary to

    the reasonable enjoyment of the property granted (W v B)

    Ie. Based on ‘quasi easements’ that existed when all property was owned

    by one person. When the property is subdivided is implied that those

    easements ‘continuous and apparent’ continue.

    b. Doesn’t need to be ‘necessary’ as such but ‘necessary for the reasonable

    enjoyment of the property’ (Wilcox)

    c. Based on intention of parties and principle that grantor should not derogate from

    grant (Wilcox)

    i. Eg: right to access toilets and other common areas in fish takeaway shop

    deemed ‘necessary for reasonable enjoyment’

    d. Needs to be both ‘continuous and apparent’: if there is no feature on the ST that

    indicates the ‘apparent’ easement, then easement not granted (Ward)

2. Easements Implied by necessity

    a. If by necessity no need for ‘continuous and apparent’

    b. But needs to be necessary not necessary for reasonable enjoyment

    c. Very strictly interpreted probably only rights of way to landlocked land

3. Easements implied by common intention

    a. Apply contract principles

    4. Easements implied by manner of description of the property

    a. Eg if advertise land as ‘by the seashore’ but is actually separated from seashore

    by strip of land, vendor grants easement over that land to purchaser (Mellor)

    b. Based on not being able to derogate from your grant

Implied Reservation of an easement

    ; Much stricter than grants: if the grantor intends to reserve any right…it is his duty to

    reserve it expressly in the grant’ (Wheeldon)

    ; Reserved easements will almost never be implied

    ; Only exceptions for:

    ; 1. a way of necessity

    ; 2. a common intended reservations (ie where both parties have an easement over each

    others land)

Implied easement by acquisition by long user

    ; Linked to notions of adverse possession

    ; Lost modern grant: grant of an easement presumed irrebuttable after 20 years of use of

    right where use open and uninterrupted (ie doing it as if they have right to do it) (Dolton)

    o Doesn’t need to be apparent and continuous

    ; The servient tenant has to be on notice that dominant tenant doing the act (Dolton)

Has the easement been extinguished?


    ; Need to show both non use of easement and an intention not to use it (Treywick)

    ; Some acquiecensce by DT is necessary to show abandonment (Treywick)

Express Release

    ; Both parties decide to get rid of: Per TLA s 73

Alteration to DT so extensive to constitute excessive use

    ; If DT assumes different character: eg right of way to agricultural land becomes used all

    the time because land becomes camping ground (Jelbert)

Unity of DT and ST

    ; May be merely suspended during period of unity

Report this document

For any questions or suggestions please email